The claimant was employed as a healthcare worker by the respondent from October 2018 to September 2019.  The actual nature of the dismissal was not an important aspect of this case.  The respondent made a decision to dismiss following a disciplinary process and disciplinary hearing.  The claimant was notified of her right to appeal that decision. She chose to appeal that decision and it was overseen by the regional manager.  The appeal was successful with the original decision being ‘overturned’ and that it was the conclusion of the company’s disciplinary procedure on that matter.   Following that the claimant outlined that she did not wish to return to work for the respondent as she had got a new job elsewhere.  The claimant had already begun proceedings at this stage for unfair dismissal, race discrimination and for outstanding pay. 

In terms of the unfair dismissal claim, the Tribunal referred to the judgment of the Court of Appeal in McMaster v Antrim Borough Council where it was held that when an internal appeal is successful the legal result of that is that the claimant’s contract will have been reinstated.  This means that the original dismissal decision is treated as having no effect.  Therefore, when the claimant had decided not to return to work following her successful appeal she was seen as terminating the contract so there was no dismissal for the purpose of an unfair dismissal claim.  The claimant would have also had to overcome the issue of not having one years’ continuous service. 

The race discrimination aspect centred upon the claimant’s allegations of statements being made against her.   The allegations related to the fact that the claimant was black, covered her head and that others could not understand her English.  The difficulty with the allegations is that they were stated in general terms and the claimant would mention ‘they’ said rather than naming particular individuals.  This led to the Tribunal finding that the uncorroborated allegations were of a vague nature and they were insufficient to discharge the burden of proof.  Accordingly, this claim was dismissed.  

Practical Lessons 

This case demonstrates the legal position arising when a successful internal appeal means that a dismissal has been overturned.  The Tribunal has affirmed the position that the original decision is seen as having no effect at all.  Therefore, there is no ‘dismissal’ at all and no claim for unfair dismissal could be advanced.  Of course, it could lead to issues of constructive dismissal but that did not arise in this case.    

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/

For an alternative view on this case, see the case review provided by Emma McIlveen BL, the Barrister instructed on behalf of the respondent. 
https://www.legal-island.com/articles/uk/case-law/2021/december/wahab-v-four-seasons-no-7-limited-20212/